We use cookies to customise content for your subscription and for analytics.If you continue to browse Lexology, we will assume that you are happy to receive all our cookies. For further information please read our Cookie Policy.

Kramer Labs Itchy Over NAD Critique of Fungus Cream

Treating athlete’s foot is not glamorous work. But the men and women of the foot fungus treatment industry take their work seriously. And we should as well; we are in their debt. At any given moment, 15 to 25 percent of us are plagued by the condition.

So perhaps we can view the inflammation that erupted between foot-care product manufacturers Kramer Laboratories and Moberg Pharma with some indulgence. Even though they may be in conflict with each other, they remain heroes to us all.

By Any Other Name

Moberg took aim at Kramer Labs in 2017, presenting product claims by Kramer to the National Advertising Division (NAD). Specifically, Moberg took exception to the name of Kramer’s product – Fungi-Nail Toe & Foot. Moberg maintained that this name would lead consumers to believe that the product treats toenail fungus when it does not. Kramer disagreed, noting that although the product was intended to treat the skin around toenails, the name didn’t expressly address toenail fungus itself.

NAD claims to be cautious when it comes to addressing product names – it won’t recommend a name change unless there is firm evidence that consumers have been “confused or misled” by the moniker. But in this case, it abandoned its traditional reticence and recommended that Kramer find a new name for the product.

Clipped

It seemed clear, NAD maintained, that the name itself communicated to consumers that the product treats nail fungus. NAD focused specifically on the fact that the word “toe” in the name is adjacent to “fungi” and “nail,” which reinforces the idea that it treats “toenail conditions.”

NAD recommended that the Fungi-Nail Toe & Foot name and associated marketing images be discontinued. It also asked that commercials and packaging using the name be scrapped unless a conspicuous disclaimer was added noting that the product was intended for athlete’s foot. It also recommended that Kramer drop a number of other claims about product performance and endorsement that NAD believed were unsubstantiated.

The Takeaway

Kramer put its foot down. In its reply to NAD, the company maintained that it “will not discontinue use of its trade name.” Kramer cited the product’s storied history. “Kramer has provided its FUNGI-NAIL TOE & FOOT brand, without interruption, for over 40 years to a very satisfied consuming public and is committed to continuing to demonstrate high standards for quality and integrity.”

“Where advertisers decline to comply,” the NAD press release noted, “the advertising claims at issue may be referred to the appropriate government agency for further review.” And with that reply, Moberg’s initial objection was kicked upstairs to both the Federal Trade Commission and the Food and Drug Administration.

Compare jurisdictions:Transfer Pricing

"The service provided by Lexology has to date been extremely useful and informative. It provides me with a snap shot update of various legal developments and assists me in staying current now and going forward."